People of Michigan v. Billie Gene Tobler, 330638

Defendant Billie Gene Tobler convicted of assault by strangulation; sentencing challenged on offense-variable scoring.
Trial court assessed 50 points under OV 7 (torture/sadism/excessive brutality) based on repeated strangulations, hair-pulling, and unlawful imprisonment as a continuous offense.
The trial court also assessed points under OV 10 (multiple victims or exposed persons), later found to be improperly scored by the majority.
Appellate court majority concluded OV 7 was improperly scored (in part) but the concurrence dissented as to OV 7, focusing on the repeated strangulations alone.
Concurrence argued repeated, prolonged strangulations constituted torture/excessive brutality during the sentencing offense and would justify 50 OV 7 points; even with an OV 10 reduction, the overall grid placement would be unchanged.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether OV 7 properly scored for torture/sadism/excessive brutality	OV 7 properly scored because defendant repeatedly strangled and otherwise dominated the victim, causing substantial fear	OV argued post-strangulation acts (hair-pulling) were separate/post-offense and thus not part of sentencing offense; OV 7 points improper	Concurrence: OV 7 properly scored based on repeated strangulations alone (torture/excessive brutality)
Whether post-offense conduct may be used in OV scoring (distinguishing OV 9 precedent)	Court may consider continuous conduct during the offense including acts before victim escaped	Defense relied on People v McGraw to exclude post-offense conduct from OV assessment	Concurrence: McGraw (about OV 9) not controlling; here the strangulations were part of the offense, not post-offense conduct
Impact of erroneously scored OV 10 on sentence	Plaintiff: even if OV 10 error, overall grid unaffected	Defendant: error requires resentencing/reversal	Concurrence: OV 10 was improperly scored but 10-point reduction does not change OV level or sentencing range; no reversal required
Whether repeated strangulation alone can constitute "torture" or "excessive brutality" under OV 7	Plaintiff: prolonged repeated strangulation for defendant’s gratification met statutory criteria	Defendant: challenged inclusion of additional acts beyond strangulation	Concurrence: repeated prolonged strangulations alone satisfy OV 7 for 50 points

People v. McGraw, 484 Mich. 120 (Michigan Supreme Court 2009) (post-offense conduct cannot be used to score OV 9 when the offense was completed before the conduct creating the risk)
People v. Thompson, 314 Mich. App. 703 (Michigan Ct. App. 2016) (OV scoring must consider conduct during the sentencing offense)
People v. Francisco, 474 Mich. 82 (Michigan Supreme Court 2006) (an error in scoring mandates reversal only if it affects the defendant’s sentencing range)